On January 4, 2018, Attorney General Jeff Sessions reversed the Department of Justice’s (DOJ) position on enforcement of federal marijuana laws. Under the Obama administration, the DOJ adopted a hands-off approach to enforcing federal marijuana laws in those states where marijuana was legal for medical and/or recreational use. But in a one-page memorandum to U.S. attorneys, Sessions reversed this approach, emphasizing the fact that marijuana has and continues to be unlawful under the federal Controlled Substances Act.

Currently, 29 states across the county have legalized medical marijuana use in some form. Additionally, eight states have legalized recreational use, with several other states indicating they may soon follow suit. In fact, just last week, the Vermont legislature approved a bill legalizing recreational marijuana in direct response to the Sessions memorandum. Twelve states (Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania, and Rhode Island) provide limited job protections for medical marijuana users. What does the Sessions memorandum mean for employers in these states?

The answer is: It depends. Only a few states have addressed how federal marijuana law impacts workplaces in states where marijuana is legal.

In 2010, the Oregon Supreme Court determined that employers are not required to accommodate medical marijuana use because it is illegal under federal law. The Colorado Supreme Court made a similar determination in 2015, when it held that an employer can discharge an employee who is a medical marijuana user for a positive drug test because marijuana remains illegal under federal law. And, in 2016, a federal court in New Mexico determined that employers in that state are not required to accommodate medical marijuana use because it is illegal under the federal Controlled Substances Act. Therefore, the Sessions memorandum is unlikely to have any impact on the current status of employment protections for medical marijuana users in Oregon, Colorado, and New Mexico.

On the other hand, in 2017, the Massachusetts Supreme Judicial Court determined that an employer cannot rely on the fact that marijuana is illegal under federal law as a basis for an adverse employment action against a medical marijuana user where such action would violate state disability discrimination laws. A federal court in Connecticutalso determined that federal law, including the Controlled Substances Act, does not preempt the anti-discrimination provision contained in that state’s medical marijuana law. So, in these states, individuals who are registered medical marijuana users and test positive for marijuana have certain job protections, even though marijuana is illegal under federal law. Thus, unless the Sessions memorandum eliminates medical marijuana altogether, it may not have an impact in Massachusetts or Connecticut.

In other states, however, the answer is not so clear: The 2017 court decisions in Massachusetts and Connecticut indicated the momentum may have been moving toward providing medical marijuana users with at least some employment protections, but whether the Sessions memorandum will reverse this momentum remains to be seen.

Meredith A. Lopez represents employers in state and federal court against discrimination, harassment, retaliation, wrongful discharge claims and labor matters. She also represents employers in pre-litigation matters before state and federal administrative agencies. Ms. Lopez advises employers regarding workplace policies and procedures and counsels them on compliance with applicable federal and state labor and employment laws.

Ms. Lopez graduated magna cum laude from Saint Louis University in 2012, where she earned her J.D. with a Certificate in Employment Law. During law...

Mr. Clarkson is licensed to practice in Massachusetts and regularly appears in state and federal courts and before administrative agencies across the country. In his work with Ogletree Deakins, Mr. Clarkson litigates cases and counsels large and small private for-profit and not-for-profit employers concerning discrimination, harassment, retaliation, non-compete, wage and hour, employment contract, personnel policy and drug testing issues. Mr. Clarkson is Chair of the Ogletree Deakins’ Drug Testing Practice Group and has particular expertise in drafting drug testing policies and in the complex scientific issues surrounding drug testing.

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